State (Freeman) v Connellan

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-HC 581
• Docket Number: [1986 No. 286 SS]
• Court: High Court
• Date: 01 January 1987

FREEMAN v. CONNELLAN

STATE SIDE

BETWEEN:

THE STATE AT THE PROSECUTION OF RICHARD FREEMAN

PROSECUTOR

AND

DISTRICT JUSTICE PETER CONNELLAN AND THE JUSTICE PRESIDING ATDUBLIN METROPOLITAN DISTRICT COURT NUMBER 6

RESPONDENTS

1986 WJSC-HC 581

THE HIGH COURT

Synopsis:

CRIMINAL LAW

Legal aid

Assignment - Choice of solicitor - Adoption by court of alphabetical progression through list of solicitors on court panel - Regulation 7 states that, upon the grant of a certificate for free legal aid, the court shall, having taken into consideration the representations (if any) of the defendant, assign to the defendant a solicitor from the list kept pursuant to regulation 4 to act for the defendant in the preparation and conduct of his case - The respondent District Justice agreed to grant to the applicant a certificate for free legal aid - The applicant requested the respondent to assign to the applicant a named solicitor, whose name appeared on the relevant panel of solicitors - The respondent, having been informed that the requested solicitor was not acting for the applicant in any pending matter, refused to assign the requested solicitor on the ground that the practice of the court was to assign solicitors on the panel in alphabetical sequence so as to reduce the overuse of a group of six solicitors (including the requested solicitor) on the panel - The applicant obtained a conditional order of prohibition restraining the respondent from proceeding with the hearing of certain complaints made against the applicant - The applicant applied for an order absolute, notwithstanding the cause shown by the respondent - Held that the cause shown should be disallowed and that the conditional order should be made absolute - Held that, when the District Court has reservations about assigning the solicitor requested by a defendant, the court should enquire of the defendant the reasons for his choice of the requested solicitor, and should consider the reasons given by the defendant. Having considered those reasons, the court should not refuse to assign the requested solicitor unless there were sufficient grounds for such refusal. If the court should decide to refuse to assign the requested solicitor, the court should inform the defendant of the reasons for the refusal and should ask the defendant whether he wanted to nominate another solicitor on the panel. Any second nomination should be treated in the same way - Criminal Justice (Legal Aid) Regulations, 1965, reg.7 - Criminal Justice (Legal Aid) Act, 1962, s.2 - (1986/656 SS - Barr J. - 28/11/86) - [1986] IR 433 - [1987] ILRM 470

|The State (Freeman) v. Connellan|

PROFESSIONS

Solicitor

Legal aid - Criminal offence - Choice of solicitor - Rights of defendant - ~See~ Criminal Law, legal aid - (1986/656 SS - Barr J. - 28/11/86) - [1986] IR 433 - [1987] ILRM 470

|The State (Freeman) v. Connellan|

Citations:

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4.1

CRIMINAL JUSTICE (LEGAL AID) ACT 1962

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2(1)

CRIMINAL JUSTICE (LEGAL AID) REGS 1965 SI 12/1965 REG 7(1)

DUFFY, STATE V MCMENAMIN UNREP HIGH LYNCH 14.04.86

FARETTA V CALIFORNIA 422 US 806

HEALY, STATE V O'DONOGHUE 1976 IR 325, 110 ILTR 9, 112 ILTR 37

O'NEILL V BUTLER UNREP MCMAHON 26.11.79 1979/12/2135

POWELL V ABRAHAM 287 US 45

PREVENTION OF CRIMES ACT 1871 S12

ROYLE, STATE V KELLY 1974 IR 259

SHARKEY, STATE V MCARDLE & DPP SUPREME 4.6.81 1981/8/1227

VON MOLTKE V GILLINS 322 US 708

1 Judgment of Mr. Justice Barrdelivered the 28thday of November 1986.

THE FACTS

2 The facts crucial to this application are not in dispute and are asfollows:-

3 The prosecutor is twenty years of age and is unemployed. He receive thirty five pounds per week unemployment assistance. He resides at an address in Finglas West, Dublin, with his father who is also unemployed. He left school at fifteen years of age and has no formal or technical qualifications. Prior to court appearances on criminal charges relating to this application, the prosecutor has appeared in court on a number of previous occasions charged with various offences and on each such occasion he was granted legal aid pursuant to the provisions of the Criminal Justice (Legal Aid) Act, 1962(the 1962 Act) and regulations made thereunder. He avers that on those occasions the court assigned to him the solicitor of his choice.

4 On 24th February, 1966 the prosecutor appeared at Dublin Metropolitan District Court Number 6 before the first-named respondent charged withtwo offences of having unlawfully assaulted a Garda officer contrary to Section 12 of the Prevention of Crimes Act, 1871. A person who is summarily convicted of such an offence may be sentenced to a term of imprisonment. It is common case that the respondent made no order as to legal aid on that occasion but remanded him on continuing bail to 3rd March, 1986 . However, the prosecutor avers (and it is not denied by the respondent) that on his original appearance in court on the charges in question he sought legal aid and, in particular, he requested that Mr. Michael Staines, solicitor, be assigned to represent him. He avers that the respondent refused his application apparently on the ground that he, the District Justice, was not prepared to assign Mr. Staines and that the prosecutor's insistence on having the latter assigned to defend him amounted to a refusal of legal aid.

5 At the adjourned hearing on 3rd March the prosecutor renewed his application for legal aid. The respondent, having enquired into the prosecutor's circumstances and having satisfied himself that it was a proper case in which to accede to the application, agreed to grant legal aid. The District Justice also indicated that it was his intention to assign a solicitor on the basis of a procedure which he had adopted in his court of nominating solicitors alphabetically from the list of practitioners on the legal aid panel for the Dublin City and County as compiled by the County Registrar under the Legal Aid Regulations. The prosecutor asked the District Justice to assign Mr. Staines. The respondent then enquired whether Mr. Staines was representing the prosecutor on any pending charge and was told that he was not. No further representations were made by the prosecutor nor were any further questions asked of him by the District Justice who refused to assign Mr. Staines. It appears that the prosecutor was not prepared to accept a solicitor nominated in accordance with the practice which the District Justice had introduced and for that reason no order was made appointinga solicitor to act for him in connection with the charges then before the court. Mr. Staines, who was present in court on that occasion, then made an application for adjournment of the charges pending the outcome of these proceedings and this was granted.

6 In course of affidavits sworn by him herein the first respondent has explained why he and other District Justices of the Dublin Metropolitan District have adopted the procedure for the assignment of solicitors in legal aid cases to which I have already referred. These reasons cast no reflection whatever on the personal or professional integrity or competence of Mr. Staines and five other named solicitors who practise in the courts in question. The difficulty referred to by the respondent is that for some years the vast bulk of criminal legal aid defence work in the Dublin Metropolitan District Courts has been carried out by a group of six solicitors, including Mr. Staines. It is averred that by reason of their heavy workloads it happens from time to time that they are unable to be present when their particular cases are called for trial and that this tends to disrupt the business of the various courts in question. Mr. Staines and two of the other solicitors against whom complaint is made have sworn affidavits in which they take issue with the respondent on various facts and also on the efficacy of the selection procedure adopted by the District Justices of the Dublin Metropolitan District. These matters are irrelevant to the determination of the issues before me and it is unnecessary to express any view thereon other than to state my opinion that a judge has a right, subject to law and principles of natural justice, to organise and conduct the business of his court in such a way as he deems to be most conducive to the efficient...